Judge in Hasan case removed

Court: Colonel for Fort Hood trial had 'appearance of bias.'

The court that removed the judge had been expected to rule on whether Maj. Nidal Hasan can wear a beard.

Photo By Brigitte Woosley/AP

In a sketch, Maj. Nidal Hasan (center, back showing) sits with his defense team and before a courtroom reporter and Col. Gregory Gross (left rear) at a hearing in July 2011. Gross has been removed as judge in the case.

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An appeals court in Washington on Monday removed the military judge overseeing the trial of an Army psychiatrist accused of killing 13 people in the 2009 Fort Hood shooting spree.

The U.S. Court of Appeals for the Armed Forces was expected to rule on a long-disputed order requiring Maj. Nidal Hasan to shave his beard, which he grew in violation of Army regulations.

Instead, it sidestepped the issue after finding that the judge, Col. Gregory Gross, had displayed an “appearance of bias” in the case. The Army's judge advocate general will appoint a new judge.

The ruling stunned one legal expert.

“I'm kind of at a loss for words, which is unusual,” said Jeffrey Addicott, who heads the Center for Terrorism Law at St. Mary's University. “I think that's one thing nobody would have anticipated, that the (court) would have taken such an extreme measure given the fact that the judge was only attempting to comply with military regulations regarding grooming standards.”

Hasan could face the death penalty for the Nov. 5, 2009, rampage that left 13 dead and 32 others wounded. He grew the beard last summer, prompting Gross to fine him $1,000 on six occasions.

An Aug. 20 start date for the trial came and went as the issue bounced through the military legal system, with one Army appeals court ruling in October that Hasan had to shave the beard or have it forcibly removed.

He said it was unusual to remove a judge in the middle of a proceeding.

“Normally, these are post-trial issues that go up on appeal and they're resolved on appeal; so it is rather surprising,” said Spinner, a Colorado lawyer known for his defense of high-profile military defendants.

Hasan said he grew the beard because of his Muslim faith and insisted that he could have one under the Religious Freedom Restoration Act. His lead defense attorney, Lt. Col. Kris Poppe, has said Hasan's religious beliefs drove his decision to grow the beard.

During a Sept. 6 hearing, Gross told Hasan to shave, but the order was stayed pending appeals this fall.

Hasan was cleanshaven the day of the shootings, but he appeared in court with the beard last June. Gross told Hasan he would be removed from the courtroom if he didn't shave it, and he later discovered what appeared to be feces on the floor of the facility's latrine — and barred him from using it.

Gross fined Hasan a total of $6,000 for violating Army regulations that limit facial hair to moustaches and sideburns.

Attorneys for Hasan said in a motion that he “is a practicing Muslim and has recently had a premonition that his death is imminent. He does not wish to die without a beard, as he believes not having a beard is a sin.”

Paralyzed from the chest down after being shot four times by post police, Hasan is in Bell County Jail, where Poppe, the defense attorney, said he began a more intensive study of Islam after spending years as a “cultural” Muslim.

Prosecutors say courts and case law grant the military deference in such cases and that Gross had a right to maintain the dignity and decorum of his court. They also said that if Hasan wore the beard at trial, it would have offended soldiers and undermined morale.

The appeals court said in its ruling that Hasan's command was primarily responsible for enforcing grooming standards, not the judge. While Gross had the right to control his courtroom, there wasn't enough evidence to show that Hasan's beard “materially interfered with the proceedings,” the court stated.

Gross' order “to remove (Hasan) from the courtroom, the contempt citation and the decision to order (Hasan's) forcible shaving in the absence of any command action to do the same could lead an objective observer to conclude that the military judge was not impartial towards appellant,” the court wrote, also noting that the judge and his family had been at Fort Hood the day of the shooting.

“In light of these rulings, and the military judge's accusations regarding the latrine,” the decision continued, “it could reasonably appear to an objective observer that the military judge had allowed the proceedings to become a duel of wills between himself and (Hasan) rather than an adjudication of the serious offenses with which (Hasan) is charged.”

A Fort Hood spokesman, Chris Haug, said a senior lawyer was looking into the court's decision.

Addicott said the latest ruling “brings great discredit” to a malfunctioning military legal system.

“This matter should have been disposed with rather quickly, it should not have been subject to appeal until after the trial's over. It's been hit around like a piñata.”